• The bulk of the more major changes to the Liquor Licensing Act 1997 (Act) are now expected in late 2019 and into 2020, including the transition to new licence categories.
  • Changes to the Act were proclaimed in stages, with initial changes taking effect in December 2017 focusing on reducing “red tape”, and changes introduced in September 2018 creating tougher penalties for certain breaches of the Act.
  • Licensees themselves should by now have been made aware of the move to an “online portal” operated by the Liquor and Gambling Commissioner (Commissioner), designed to assist them navigate the proposed changes.
  • Landlords and accountants should also be aware of some important changes to licence categories, licence conditions and licence fees that could affect a licensee’s bottom line and operations.


On the way

Special Circumstances Licence (SCL) – Transition

Under the changes to the Act, the category of the Special Circumstances Licence (SCL) is being removed altogether.  This has the potential to create great uncertainty for these licensees who will effectively have their licence substituted for a new licence, on the proclaimed day which is expected to be in November 2019.

Licensees may have already, or should shortly, be notified about this change to their SCL and will have a set period in which to respond to Commissioner with any concerns.  We will keep you updated as this process continues, however if you have received any such notice of a licence change and you have any questions, we encourage you to seek advice before responding.

The important take away message is that you will have the right to query any proposed conditions and review a decision of the Commissioner as to your trading rights.

Other Licence Changes – Where to for Hotels, Restaurants and Producers?

Holders of the above are likely the three other main categories of licence most affected by the upcoming changes.  We encourage you to seek early advice in respect of the transition to new licence categories.

The Commissioner has stated publically that no licensee should be worse off in terms of trading rights under the changes.  In a large scale review and statewide transition such as this however, there is potential for error and oversight.

The message to all licensees is therefore, seek advice as to any change as soon as you get notified, given we understand the Commissioner will notify you direct about proposed changes to licences and the use of the online portal.  If you do have any queries or concerns in respect of the transition process for any category of licence, Eckermann Lawyers can assist.

Licence Fee changes

Fees are widely expected to increase in the 2020 financial year for existing licence holders.  Annual licence fees will be set in the future by reference to issues such as capacity, trading hours and whether high risk activities take place on site.

Importantly, there may be means of limiting exposure to increased fees by considering variations to the conditions of trade on a licence.  Such a decision should not be taken lightly as “what is given away, may not be able to be got back”; should a proposed change in licence fees affect your licence we would encourage you to seek early advice as to your options.


What’s already changed?

Sundays and Public Holidays – Same Story, Different Day

The distinctions for public holiday trade have been amended;

  • Hotels, SCLs and Clubs are “freed-up” to trade on Sundays between 9pm to midnight (and for hotel licences for off-premised trading 8pm to 9pm), by right.
  • For public holidays, all licensees are entitled to trade on Good Friday and Easter Saturday as if those days were any other Friday or Saturday. For Christmas Day and New Years’ Eve, trade is authorised in accordance with the licence as it applies to the day of the week on which the holiday falls.

All licensees must, of course, comply with their planning approvals. So, for example, a hotel that is limited to 10pm trade on a Sunday can’t simply ignore that and would need to apply to amend if seeking to trade later. Recent experience tells us that the changes remain confusing – if you are at all unsure about the impact on your licence, please contact us.

Entertainment Conditions Revoked! (but we await updates to licences themselves…)

An Entertainment Consent in force was revoked from 18 December 2017. Any entertainment condition on a licence is now also taken to be of no effect. Despite that, conditions limiting entertainment imposed under separate Legislation, i.e. the Development Act, will continue in force despite the Liquor Licence no longer being bound by those limitations.

There continues to be uncertainty as to what amounts to an “entertainment condition” and given the number of licences affected, the Liquor and Gambling Commissioner has undertaken to review such conditions in the transition to new licence categories outlined above.

The result in the meantime is that licensees, concerned neighbours, Police and Local Government Authorities can no longer rely on the terms and conditions referred to on the face of the Liquor Licence displayed on the Liquor and Gambling Commissioner’s website.

Licensees should take care not to simply ignore complying with what they consider to be “entertainment conditions” on their licence as a result of these changes. To do so could well result in activities contrary to the Act and Development Act and leave a licensee open to disciplinary action.  Eckermann Lawyers can assist if you face any such disciplinary action, whether instigated by Police or the Commissioner.

Public Notification Changes – “how do I find out if a licensed premises is about to open?”

Most applications were previously subject to wide scale public notification under the Liquor Licensing Act. That notification involved placing a public notice in The Advertiser and local newspaper, display of a large Form 2 Notice on the proposed licensed premises, publication of the notice of application in the Government Gazette (or more recently in the Liquor and Gambling Commissioner’s CBS website) and service of a Notice of Application on occupiers of premises adjacent to the proposed licensed premises.

That process has been radically changed so that the only notification required is on the Liquor and Gambling Commissioner’s CBS website and by notice displayed on the premises.

If you have any concerns about the opening of a licensed premises in your neighborhood, Eckermann Lawyers can assist.

No Licence required? – Freeing up “Low Risk” businesses

The Regulations have been amended so that a wider range of premises are now exempt from the need to obtain a liquor licence to sell and supply liquor. Those premises now include a larger number of bed and breakfast facilities, certain gift delivery services, hairdressers and jewellers.

There are also wider exemptions provided for certain retirement village and hospital-like facilities, subject to meeting certain, very specific criteria.

If you are wondering whether your business needs a liquor licence, even to supply liquor on a “complimentary basis” or at small scale events, please get in touch, as we can assist.


Takeaway messages

  • The face of your licence can no longer be relied on. If in doubt as to your obligations, seek advice!
  • Applications are not necessarily going to get easier under the new regime and changes to licence categories themselves are expected in late 2019. If seeking to vary a licence or apply for a new licence, particularly an SCL, act now!
  • If buying a licensed premises/taking a transfer of licence, the licence itself may not tell the whole story – beware and seek early advice!

 


Caderyn McEwen
Associate Director, Eckermann Lawyers

Contact Caderyn


Danny Nemer
Legal Practitioner Director, Eckermann Lawyers

Contact Danny